EBEL, Circuit Judge.
This appeal requires us to weigh in once again on a district court's authority to grant a sentence reduction under 18 U.S.C. § 3582(c)(2). Although Defendant Joseph White was initially charged with 16 drug- and gun-related counts, the government agreed to drop all remaining counts against him in exchange for his pleading guilty to possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Mr. White was then sentenced to a term of imprisonment outside of the advisory guideline range: after the sentencing court imposed the mandatory 60-month sentence for all § 924(c) convictions, it exercised its discretion and departed upward by an additional 87 months to account for the drug trafficking conduct that gave rise to Mr. White's § 924(c) conviction but which had been dismissed pursuant to his plea agreement. The 87-month figure was computed under the old crack cocaine guidelines as if Mr. White had in fact been convicted of possessing 21.35 grams of crack.
When the Sentencing Commission retroactively lowered the crack cocaine guidelines in response to the Fair Sentencing Act of 2010, Mr. White filed a pro se § 3582(c)(2) motion and requested that the district court reduce his 87-month departure to accord with the new crack cocaine guidelines. The rejected crack guidelines undoubtedly played a role in his originally imposed sentence, Mr. White argued, so he too should be eligible for a sentence reduction to correct that disparity. The district court disagreed. Recognizing that the Sentencing Commission has enacted a policy statement that expressly precludes courts from reducing a departure portion of an originally imposed sentence, the court denied Mr. White's sentence modification motion in a one-paragraph order.
For reasons explained more fully below, however, we need not consider these next-level arguments because Mr. White has not shown, as he must, that he "has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission." 18 U.S.C. § 3582(c)(2) (emphasis added). It is well-settled in this circuit, and elsewhere, that the range upon which a sentence is "based" is the range produced under the guidelines' sentencing table after a correct determination of the defendant's total offense level and criminal history category but prior to any discretionary departures. Although Mr. White asserts that Freeman v. United States, ___ U.S. ___, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011), requires us to reconsider our prior interpretation of § 3582(c)(2)'s "based on" clause, we explain herein why the pre-Freeman bar on reducing discretionary departures persists post-Freeman. While it therefore follows that the district court did not err in holding that Mr. White was ineligible for a sentence reduction under § 3582(c)(2), his motion should have been dismissed, not on the merits, but on jurisdictional grounds. Exercising jurisdiction under 28 U.S.C. § 1291, we thus vacate the district court's order denying Mr. White's motion and remand with instructions to dismiss for lack of jurisdiction.
In August 2006, Mr. White was indicted on sixteen drug- and gun-related counts, including possession with intent to distribute crack cocaine within 1,000 feet of a school, in violation of 21 U.S.C. §§ 841, 860 (Count 4), and possession of a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c) (Count 12). In exchange for Mr. White pleading guilty to the gun possession charge (Count 12), the government agreed to dismiss all remaining counts against him, including the predicate drug trafficking offense that gave rise to the gun charge for which he was admitting guilt. In anticipation of sentencing, the United State Probation Office prepared a Presentence Investigation Report ("PSR") instructing that Mr. White's advisory guideline sentence was the statutorily-required 60-month mandatory minimum sentence under U.S.S.G. § 2K2.4.
Although neither party objected to the PSR, the sentencing court informed the parties by letter that it was contemplating an upward departure under § 5K2.21 in order to account for Mr. White's "Dismissed and Uncharged Conduct." Pointing to the commentary accompanying the § 924(c) guideline stating that it is "unusual" for an individual to be convicted of § 924(c) without also being convicted of the underlying drug trafficking offense, the sentencing court suggested that an upward departure was warranted on the
Following a hearing on the matter, the sentencing court informed the parties that it was adhering to its intent to depart upward from the mandatory 60-month advisory guideline sentence called for in the PSR. As the court's sentencing decision later explained,
R. Vol. 1 at 74-75 (emphasis added). Setting out two separate "[o]ffense [l]evel [c]omputations," the probation officer's new calculations were computed as if Mr. White had been convicted of both Count 4 and Count 12. Id. at 86. With respect to Count 12, the probation officer explained that all § 924(c) convictions carry "a statutorily required five (5) year minimum consecutive sentence." Id. Then, with respect to Count 4, he applied U.S.S.G § 2D1.2 and determined that possession with intent to distribute 21.35 total grams of crack yielded a base offense level of 29; after a 3-level reduction for acceptance of responsibility, the probation officer calculated a total offense level of 26 for Mr. White's dismissed drug-trafficking conduct. Id.
Expressly relying on those calculations at sentencing, the court determined that a controlling sentence of 147 months would satisfy the sentencing objectives of § 3553(a): "Using defendant's criminal history category II and a total offense level of 26, the advisory guideline range for count 4 becomes 70-87 months. The court will impose a 60 month sentence on count 12 enhanced by an upward departure of 87 months for a controlling sentence of 147 months." Id. at 75 (emphasis added). This court upheld Mr. White's sentence on direct appeal, rejecting his claim that the sentence was procedurally and substantively unreasonable. See United States v. White, 265 Fed.Appx. 719 (10th Cir.2008) (unpublished).
In 2010, Congress enacted the Fair Sentencing Act of 2010 ("FSA"), Pub.L. No. 111-220, 124 Stat. 2372 (2010), and increased the quantities of crack cocaine needed to trigger mandatory minimum sentences for drug trafficking: the threshold for the five-year minimum was raised from 5 to 28 grams, while the threshold for the ten-year minimum was raised from 50 to 280 grams. By leaving the same thresholds for powder cocaine at 500 and 5,000 grams respectively, the FSA effectively lowered the crack-to-powder sentencing disparity from 100-to-1 to 18-to-1. See Dorsey v. United States, ___ U.S. ___, 132 S.Ct. 2321, 2329, 183 L.Ed.2d 250 (2012). Acting pursuant to its authority to amend the Guidelines in a manner consistent with the FSA, the Sentencing Commission responded by promulgating Amendment 750, which reduced the base offense levels for crack cocaine offenses by increasing the weight of drugs associated with each base offense level in the crack cocaine guidelines. U.S.S.G App. C., Amend. 750. Had Amendment 750 been
Citing these retroactive changes in the law, Mr. White petitioned the district court to reduce his sentence on October 26, 2012. His pro se motion asserted that a reduction was warranted under the FSA, Amendment 750, and 18 U.S.C. § 3582(c)(2). That statutory provision, which applies "in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission," provides an exception to the general bar against sentence modifications and affords district courts the discretion to reduce a qualifying defendant's term of imprisonment "after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with the applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(2) (emphasis added). Asserting that it was "clear that [his] sentence was `based on' [the since-amended] crack-cocaine guidelines," Mr. White requested that his sentence be reduced from 147 months to 106 months in order to reflect the changes to the advisory guideline range on which his departure-based enhancement was based.
The district court denied Mr. White's motion four days later, incorporating by reference an email from the probation office stating that "Mr. White is not eligible for a sentence reduction based on the retroactive crack cocaine amendment because the amendment does not have the effect of lowering his applicable guideline range of 60 months. 1B1.10(a)(2)(B)." R. Vol. 1 at 144-45. This appeal followed.
As we set out to determine whether the district court was authorized to reduce Mr. White's term of imprisonment, we are mindful of Congress's directive that sentence modifications are to be the exception, not the rule. See 18 U.S.C. § 3582. After all, it is well-settled that "[a] district court is authorized to modify a Defendant's sentence only in specified instances where Congress has expressly granted the court jurisdiction to do so." United States v. Blackwell, 81 F.3d 945, 947 (10th Cir.1996). Absent the operation of one of a few narrowly-defined statutory exceptions, therefore, "[f]ederal courts generally lack jurisdiction to modify a term of imprisonment once it has been
Section 3582(c)(2) provides:
(emphasis added). This statute represents "a congressional act of lenity intended to give prisoners the benefit of later enacted adjustments to the judgments reflected in the Guidelines." Dillon v. United States, 560 U.S. 817, 828, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). Following the Supreme Court's lead in Dillon, this court has recognized that § 3582(c)(2) prescribes a two-step inquiry for determining whether a defendant is entitled to have his originally-imposed sentence reduced: the first question, a matter of law, is whether a sentence reduction is even authorized; the second question, a matter of discretion, is whether an authorized reduction is in fact warranted. See, e.g., United States v. Battle, 706 F.3d 1313, 1317 (10th Cir.2013).
As the plain language of the statute makes clear, a district court is authorized to reduce a sentence under § 3582(c)(2) only if the defendant was originally "sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission." (emphasis added); accord Dillon, 560 U.S. at 825-26, 130 S.Ct. 2683 ("[T]he provision applies only to a limited class of prisoners — namely, those whose sentence was based on a sentencing range subsequently lowered by the Commission.").
Applying that definition here, the range upon which Mr. White's sentence was "based" was the 60-month mandatory minimum calculated under U.S.S.G. § 2K2.4 — even though the district court ultimately departed upward therefrom, and even though that departure explicitly referenced a since-amended guideline range. To be sure, that enhancement was, in some sense, based on the now-lowered crack cocaine guidelines — in that those guidelines helped to establish the 70-to-87-month figure upon which the sentencing court relied when determining how much additional time to add to Mr. White's guideline sentence. However, his term of imprisonment — and indeed the departure-based enhancement included therein — was based on the unchanged mandatory 60-month figure that accompanied his only crime of conviction. "This holding is mandated by the guidelines' definition of a sentencing departure as well as this court's sentencing framework, which requires a sentencing court first to determine the applicable guideline range before deciding whether to exercise its discretion to impose a non-guideline sentence." Darton, 595 F.3d at 1197. Accordingly, because neither Amendment 750 nor any other amendment to the Guidelines lowered the sentencing range on which Mr. White's sentenced was "based," the district court correctly concluded that it was not authorized to reduce Mr. White's sentence under § 3582(c)(2).
Despite Mr. White's protestations to the contrary, Freeman in no way conflicts with this court's understanding that, for purposes of § 3582(c)(2), a previously-imposed sentence can never be "based on" a discretionary departure. The question presented in Freeman was "whether defendants who enter into 11(c)(1)(C) agreements that specify a particular sentence may be said to have been sentenced `based on' a Guidelines sentencing range, making them eligible for relief under § 3582(c)(2)." 131 S.Ct. at 2691 (plurality). As we have previously recognized, answering that question "proved fractious for the Freeman Court." Graham, 704 F.3d at 1277. A four-member plurality concluded that a defendant sentenced pursuant to 11(c)(1)(C) agreement is eligible for relief under § 3582(c)(2) so long as the sentencing court relied on the Guidelines when deciding to accept the plea agreement and its attendant "within the guideline ranges" sentence. Freeman, 131 S.Ct. at 2691-93 (emphasis added, internal quotation marks omitted). Writing for herself in a concurrence that "represents the Court's holding," Graham, 704 F.3d at 1278, however, Justice Sotomayor concluded that 1 1(c)(1)(C) pleas are not "based on" a Guidelines sentencing range whenever the sentencing court "use[s] the Guidelines as a yardstick," 131 S.Ct. at 2696, but only "when the agreement itself employs the particular Guidelines sentencing range applicable to the charged offenses in establishing the term of imprisonment." Id. at 2698 (emphasis added). And because Freeman's particular agreement used his offense level and criminal history category to "produce a sentencing range of 46 to 57 months" and then "employed the 46-month figure at the bottom end of this sentencing range," Justice Sotomayor joined the plurality in concluding that, notwithstanding the intermediary plea agreement, "Freeman's term of imprisonment [was] `based on a Guidelines sentencing range.'" Id. at 2699-2700.
As the emphasis in the foregoing paragraph makes clear, unlike Mr. White, Mr. Freeman was sentenced to a non-departure based, entirely within the Guidelines term of imprisonment. Unlike Mr. White, therefore, had it not been for the fact that Mr. Freeman's sentence was imposed pursuant to (c)(1)(C) plea, there would have been no question, under our precedent or anyone else's, that Mr. Freeman had "been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission," § 3582(c)(2). See Freeman, 131 S.Ct. at 2700 (Sotomayor, J., concurring) ("Thus there can be no doubt that
While the fact that Mr. Freeman had been sentenced to a within-the-Guidelines sentencing range is lost on Mr. White, it was not lost on the Freeman plurality as it explained the role the Guidelines play "[i]n the usual sentencing":
131 S.Ct. at 2692 (emphasis added, internal citations omitted). Nor was it lost on Justice Sotomayor who expressed a similar understanding of the "based on" requirement outside of the (c)(1)(C) context: "in applying § 3582(c)(2) a court must discern the foundation for the term of imprisonment imposed by the sentencing court ... in the normal course the district judge's calculation of the Guidelines range applicable to the charged offenses will serve as the basis for the term of imprisonment imposed." 131 S.Ct. at 2695 (emphasis added). Quite apart from abrogating this court's prior precedent, these statements would seem to ratify our understanding that "a departure only exists apart from the applicable guideline range" and, therefore, that "the range upon which a sentence is `based' is, as a matter of law, the range produced under the guidelines' sentencing table after a correct determination of the defendant's total offense level and criminal history category but prior to any discretionary departures." Darton, 595 F.3d at 1194, 1197.
Other panels of this court have implicitly held that our pre-Freeman glosses on § 3582(c)(2)'s "based on" clause survive Freeman. See United States v. Samuels, 528 Fed.Appx. 953, 955-956 (10th Cir.2013) (unpublished) ("Freeman provides Mr. Samuels with no assistance ... because... the parties did not calculate an agreed-upon sentence based upon the crack cocaine Guidelines.... Rather, Mr. Samuels' sentence was based upon the career offender Guidelines provision." (emphasis in original)). See also United States v. Wilson, 493 Fed.Appx. 919, 922 (10th Cir. 2012) (unpublished) ("The record makes clear that Defendant's sentence was based on a statutory mandatory minimum rather than the Guidelines."); United States v. Fields, 500 Fed.Appx. 755, 757 (10th Cir. 2012) (unpublished) (same). For the foregoing reasons, we now make explicit what
In a last-ditch effort to obtain a sentence reduction, Mr. White asserts that, even if Freeman does not alter the fact that a previously-imposed sentence can never be "based on" a discretionary departure, we cannot enforce that rule under the circumstances presented in this case because "applying the statutory scheme to withhold from [him] the possibility of a sentence reduction where such possibility could not have been withheld had he been convicted of [the underlying crack distribution offense], rather than having that charge dismissed, produces an absurd result." Supp. Aplt. B. at 44. In effect, in other words, Mr. White is requesting that we create out of whole cloth an exception to the rule that a sentence cannot be based on a discretionary departure where, like here, the departure was an upward departure for dismissed or uncharged conduct under § 5K2.21. While we empathize with Mr. White's inability to obtain relief from the injustice wrought by the now infamous 100-to-1 crack-to-powder cocaine sentencing disparity — and urge Congress to reconsider excluding defendants like Mr. White — we cannot agree that applying the law as written will produce an absurd result.
Although Mr. White undoubtedly believes that barring defendants like him from seeking sentence reductions is absurd, he has not pointed us, as he must, to any evidence suggesting that Congress would also see it that way. See Robbins v. Chronister, 435 F.3d 1238, 1241 (10th Cir. 2006) (en banc) ("[W]e can apply the [absurdity] doctrine only when ... the result would be `so bizarre that Congress could not have intended it.'"). Indeed, both this court and the Sentencing Commission have already concluded that Congress actually intended all discretionary departures to be outside the scope of a § 3582(c)(2) sentence reduction. See Darton, 595 F.3d at 1197 ("[T]he range upon which a sentence is `based' is, as a matter of law, the range produced ... prior to any discretionary departures." (emphasis added)); U.S.S.G. § 1B1.10 cmt. n. 1(A) ("Eligibility for consideration under 18 U.S.C. 3582(c)(2) is triggered only by an amendment listed in subsection (c) that lowers ... the guideline
For the foregoing reasons, the district court did not err in holding that Mr. White was ineligible to receive a sentence reduction under § 3582(c)(2). While we discern no error in the district court's analysis, dismissal for lack of jurisdiction rather than denial on the merits is the appropriate disposition of Mr. White's § 3582(c)(2) motion. See Graham, 704 F.3d at 1279. We therefore VACATE the order denying the motion and REMAND with instructions to dismiss the motion for lack of jurisdiction.
HARTZ, Circuit Judge, concurring:
I agree with the majority opinion that Mr. White is not eligible for resentencing and that this result is quite unfortunate. I would reach the result, however, on a slightly different path. In light of Freeman v. United States, ___ U.S. ___, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011), I am not as confident as the majority that Mr. White's sentence was not "based on" the abrogated crack-cocaine guideline. But even if it was "based on" that guideline, Mr. White is barred from relief under 18 U.S.C. § 3582(c)(2), which requires that any reduction in sentence be "consistent with applicable policy statements issued by the Sentencing Commission." The Sentencing Commission's policy statement in USSG § 1B1.10(a)(2)(B) states that a reduction is permissible only if the retroactive guideline change "lower[s] the defendant's applicable guideline range"; and application note 1(A) to § 1B1.10 makes explicit that the applicable guideline range is the range based on the defendant's offense level and criminal-history category before any departure or variance.
Although this court has opinions indicating that § 1B1.10(a)(2)(B) does no more than paraphrase § 3582(c)(2), see United States v. Darton, 595 F.3d 1191, 1194 (10th Cir.2010); United States v. Dryden, 563 F.3d 1168, 1170-71 (10th Cir.2009), the statements in those opinions are based on an interpretation of the statute that predates, and may be inconsistent with, Freeman. To the extent that the majority opinion is contrary to Freeman, what we
